The following submission was made by NLS lawyer Shibil Siddiqi to the Law Society of Upper Canada (LSUC) with respect to the accreditation of the Trinity Western University Law School, a private university in British Columbia (read in original format here). The issue has been controversial and has received much coverage in the media because it involves an apparent clash between equality and human rights on the one hand, and freedom of religion on the other. In summary, TWU is a religious school that requires all its students to sign a “Covenant” that they will refrain from sexual intimacy outside of marriage. TWU’s definition of marriage extends only to the union of one man and one woman, thereby excluding same-sex relationships. The Federation of Law Societies of Canada has approved TWU’s application. LSUC is now seeking submissions on whether it should recognize TWU’s law school. As the largest law society in the country, and one that regulates almost half of all lawyers in Canada, LSUC’s decision in this matter will likely carry enormous weight in terms of how law societies across Canada deal with this issue. Please note that these are individual submissions and do not necessarily represent the view of NLS or any member of its staff other than the writer. All submissions to LSUC are publicy available here: http://www.lsuc.on.ca/twu/

Dear Honourable Benchers of the Law Society of Upper Canada:

I am a lawyer and Member in Good Standing of the Law Society of Upper Canada. As such, I am writing to express my opinion on LSUC’s accreditation of Trinity Western University’s law school. I have many concerns about TWU’s accreditation, but for the purposes of this submission I will focus on a narrow human rights perspective, and suggest that denying TWU’s application for accreditation as it is currently made would strike the right balance between the human rights of law students and the religious freedoms enjoyed by TWU.

I make this submission not only to express my personal opinion, but also because of what I see as my professional obligations under Rules 1.03(1)(b) and 5.04(1) of the Rules of Professional Conduct. These Rules require me, and all lawyers in the Province, to “respect human rights laws in force in Ontario”.

This is fundamentally why I find the accreditation of TWU’s law school so problematic. I understand that the British Columbia Human Rights Code allows the type of discriminatory actions that TWU has engaged in and is proposing to engage in with its law school. However, the Ontario Human Rights Code certainly does not tolerate such actions. Were TWU situated in Ontario (or in Alberta, Saskatchewan or Nova Scotia for that matter) there would be no need for this submission. TWU would be in clear breach of human rights laws and would have to alter its practices accordingly before having any hope of being accredited.

Therefore, can LSUC accredit TWU’s law school while respecting our professional obligations with respect to human rights laws in Ontario? Of course, the Ontario Human Rights Code does not apply to TWU, but it does apply to LSUC. The decision to accredit TWU’s law school is to be made by LSUC here in the Province of Ontario, under the full weight of the “human rights laws in force in Ontario.” These human rights laws include not only a duty not to discriminate, but also a duty to not authorize, condone, adopt or ratify discriminatory behavior. In this light, can LSUC, as Ontario’s law society, make a decision to accredit a law school that is clearly in breach of our human rights laws? It should be entirely unacceptable for our profession to ignore practices that are discriminatory in Ontario. To do so would be a failure of our professional obligations, and indeed our profession as a whole, with respect to human rights. It would also send a signal that discrimination contrary to Ontario law is acceptable to LSUC as long as such discrimination is sufficiently “outsourced”.

As such I would urge LSUC to be mindful of Ontario’s human rights laws as well as our professional obligations when rendering a decision on this important issue. On this basis, I would urge LSUC to deny TWU’s request for accreditation.

While such a decision may appear, on its face, to have a substantial negative impact on TWU and the investments that it has made in its putative law school, the reality is somewhat different. TWU is free to hold and disseminate any honestly held religious beliefs. Unlike some of the commentary on this issue, I do not necessarily believe that religious or moral instruction incompatible with the law automatically means that law students will be inadequately prepared to deal with professional life as a lawyer. An ethical and passionate practice of law often involves the interplay of law, public ethics and private morality. Like many lawyers, I do not see an irresolvable contradiction between believing that certain laws are unjust or immoral, while satisfying my obligations to my profession and to the administration of justice in upholding those laws.

Similarly, LSUC’s decision to not accredit TWU should not be based on the content of its instruction (provided the over-all content meets professional competency requirements) or on the honestly held beliefs of its administrators, faculty or students. TWU and all those associated with it have an absolute right to their honestly held religious beliefs. Rather, LSUC’s decision to deny accreditation ought to turn on the Covenant that students are required to sign as a condition of admission. As a condition of admission, TWU students are required to undertake to act and to refrain from acting in certain ways that are discriminatory under the human rights laws in force in Ontario. The Covenant leaps out of the realm of belief and intrudes upon the domain of action. I believe it is this action that infringes upon the human rights of actual and prospective students at TWU.

Therefore, LSUC should send a strong signal to TWU that its practice of requiring students to sign the Covenant is discriminatory according to the laws of Ontario that bind us individually and as a profession, and that its application for accreditation will fail until it remedies this requirement. That is, in actual fact the only change TWU is required to make to gain accreditation from LSUC in compliance with human rights laws in Ontario is to cease its practice of forcing students to sign the Covenant. Doing so might not make TWU Canada’s favourite law school, but it will make it, like all other law schools in the country, compliant with human rights law in Ontario.

I am proud to be part of this profession, and I hope that I will be able to be proud of the decision that Convocation renders on this issue.

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